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3 Foote vs. National Mining Co., 2 Mont. 402.

4 Phillpotts vs. Blasdel, 8 Nev. 61.

5 Eureka Con. M. Co. vs. Richmond M. Co., 4 Sawyer, 302.

6 Ibid, p. 310.

§ 15. Possession.-The first recognition by Congress of private rights to mineral lands on the public domain, is of a right based upon mere possession.1 The language of this act, however, comprehends only the control of proceedings in United States courts, and requires that, in possessory actions, in the absence of any showing of superior right by virtue of compliance with the laws of the United States, prior possession shall be recognized as giving the better right. But it is a well recognized rule of decision in all courts, in controversies involving the title to mining property, that proof of prior possession makes a prima facie case for the claimant, which can only be overcome by proof of subsequent abandonment, or other divestiture, and the acquisition of a better right or title by his adversary.2

1 Rev. Stat. U. S. § 910, ante, p. 12.

2 Doran vs. Central Pac. R. Co., 24 Cal. 245; Kimball vs. Gearhart, 12 Cal. 28; Kelly vs. Natoma Water Co., 6 Cal. 105; English vs. Johnson, 17 Cal. 107; Sears vs. Taylor, 4 Col. 38; McCarron vs. O'Connell, 7 Cal. 152; Basey vs. Gallaghear, 20 Wall. 670. But this possessory right can only be asserted by citizens of the United States or those who have declared their intentions to become such-Golden Fleece M. Co. vs. Cable Cons. Co., 12 Nev. 327.

§ 16. Possession prior to location.- Not only may prior possession be invoked to restore one who has been ousted, or to secure one in the occupancy and enjoyment of a mining claim from which it is sought to eject him, but it will serve to protect one who has not yet taken the incipient steps to secure a mining claim-who has not at least accomplished the first essential requisite to a location by the discovery of mineral. The mere fact that he is in actual possession of a portion of the public domain,

prosecuting a search for mineral, gives him a right superior to anyone who may come upon the same ground for the same or any other purpose inconsistent with the pos sessory right of the first occupier. And one in possession of such land for agricultural purposes may so hold it, subject only to the rights of others to enter in search of minerals.2

1 Pennsylvania M. Co. vs. Owens, 15 Cal. 135; English vs. John son, 17 Cal. 107; Sears vs. Taylor, 4 Col. 38; McCarron vs. O'Con nell, 7 Cal. 152; Crossman vs. Pendry, 1 Col. Law. Rep. 496; Staininger vs. Andrews, 4 Nev. 159. But if one in possession stands by and allows others to enter and sink a shaft within his boundaries, and first discover mineral in rock in place, the law gives the mineral to the first discoverer. Crossman vs.Pendry, 1 Col. Law Rep. 496. Opinion by MILLER, J. (U. S. Cir. Ct.). 2 Lentz vs. Victor, 17 Cal. 272.

$ 17. What constitutes possession. -The character of possession which will give the miner a right to the claim, independent of his location, pursuant to law or miners' rules, may be either actual occupation (possessio pedis), or constructive possession. When he claims the right to occupy without having any well defined boundaries or monuments, showing the extent and limits of his claim, his possession must be of the former kind, and must be shown by actual physical workings.1 In one case it is stated that the possession of a mining claim need not be "the actual possession which is applied to agricultural lands, and which is understood to be possessio pedis;" but this is only when the limits are defined by physical marks or monuments.3 The possession will constructively extend to the limits of the claim when they are so defined, or are fixed by mining regulations in force.5 But mere assertion of title and marking the boundaries will not suffice. It must be actual occupation, a complete subjection to the will and control of the claimant. Another kind of constructive possession is where one enters under

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color of title, with no one claiming adversely. In such case his possession will extend to the limits fixed by his deed, regardless of whether it be a valid conveyance or not.7 But possession under color of title cannot be shown to establish adverse possession where the deed is under a void judgment and execution sale,8 but the entry must be made in good faith under the deed. A conveyance of an entire tract to one in possession of a part will not operate to extend his prior possessory rights to the whole of the tract. But an insufficient description in the deed will be aided by a location certificate on record, which is referred to, and the possessory right will extend to the limits therein described, although the certificate be otherwise defective. This exception to the rule of strict conformity is made only in favor of purchasers.10 The possession may be by one or more of several tenants in common, and will inure to the benefit of all.11 But occasional occupancy for the purpose of prospecting will not constitute such possession as the law will recognize,12 nor will work done for other than mining purposes give one a right to claim to the boundaries of a mining claim.13

1 Hess vs. Winder, 30 Cal. 349-55; Robinson vs. Imperial S.M. Co., 5 Nev. 44.

2 Atwood vs. Fricot, 17 Cal. 37.

3 Roberts vs. Wilson, 1 Utah, 292.

4 Ibid; Crossmar vs. Pendry (U. S. Cir. Ct.), 1 Col. Law Rep. 496; Hicks vs. Bell, 3 Cal. 219; Weimer vs. Lowery, 11 Cal. 104; English vs. Johnson, 17 Cal. 107; Patterson vs. Keystone M. Co., 23 Cal. 575; Hawxhurst vs. Lander, 28 Cal. 331; Golden Fleece Co. vs. Cable 'Con. Co., 12 Nev. 312.

5 Correa vs. Frietas, 42 Cal. 339; Hicks vs. Bell, 3 Cal. 219.

6 Robinson vs. Imperial, &c. Co., 5 Nev. 44-66; Murphy vs. Wallingford, 6 Cal. 648. But setting a stake with notice containing name of lode, date of discovery, and names of discoverers, and notice of intention to locate, held as equivalent to actual possesssion for the time allowed by law to complete the location.-Erhardt vs. Boaro (U. S. Cir. Ct.), 1 Col. Law Rep. 497.

7 Green vs. Bates, 6 Cal. 263; Rose vs. Davis, 11 Cal. 133; Baldwin vs. Simpson, 12 Cal. 560; Keane vs. Carsenovan, 21 Cal. 291; Kile vs. Tubbs, 23 Cal. 431; Hicks vs. Coleman, 25 Cal. 122; McKee vs. Greene, 31 Cal. 418; Ayres vs. Bensley, 32 Cal. 620; Walsh vs. Hill, 38 Cal. 481; Hoag vs. Pierce, 28 Cal. 187; Atwood vs. Fricot, 17 Cal. 37.

8 Ahrens vs. Adler, 33 Cal. 608.

9 Wolfekill vs. Malajowich, 39 Cal. 276.

10 Harris vs. Equator, &c. Co., 2 Col. Law Rep. 63.

11 Waring vs. Crow, 11 Cal. 366; Patterson vs. Keystone M. Co., 30 Cal. 360; Mallet vs. Uncle Sam G. & S. M. Co., 1 Nev. 188; Mining Co. vs. Taylor, 100 U. S. 37.

12 Deer vs. McClintock, 31 Wis. 195.

13 Maxon vs. Williamson, 2 Mont 421.

$ 18.

Character of possessory right.-Possession raises an inference of title. A judgment roll showing that a party has prosecuted a suit to judgment against a trespasser, was held sufficient to rebut the presumption of abandonment, and his possession was held to continue and give him the better right until proof of subsequent abandonment or transfer.2 It is also aided by a presumption in favor of its rightfulness.3 It gives the one in possession a right not only to prevent others from entering to explore the ground for mineral, but from erecting superstructures as well. It is property, and as such subject to execution; 5 may be transferred by deed or written agreement,6 or by a mere transfer of the possession to another by verbal consent.7 And when one was in possession at his death, it was held that his possession gave prima facie title to his heirs.8 But no claimant who relies on prior possession alone has any right or title which he can assert against the United States or its grantee.9

1 Sears vs. Taylor, 4 Col. 38; Jackson vs. McMurray, id. 76; Burdge vs. Smith, 14 Cal. 380; Campbell vs. Rankin, 99 U. S. 261. 2 Richardson vs. McNulty, 24 Cal. 339.

3 English vs. Johnson, 17 Cal. 107; Kinney vs. Con. Virginia M. Co., 4 Sawyer, 382-450.

4 Correa vs. Frietas, 42 Cal. 339.

5 McKean vs. Bisbee, 9 Cal. 137; Forbes vs. Gracey, 94 U. S. 762. 6 Jackson vs. Feather River, &c. Co., 14 Cal. 18.

7 Kinney vs. Con. Virginia M. Co. 4 Sawyer, 382-453; McDonald vs. Bear River, &c. Co., 13 Cal. 220.

8 Gregory vs. McPherson, 13 Cal. 562.

9 Ah He vs. Crippen, 19 Cal. 491; Doran vs. Cent. Pac. R. Co., 24 Cal. 245; Heydenfeldt vs. Daney Gold, &c. Co., 93 U. S. 634.

§ 19. Pleading possessory right.-It is only necessary to aver that the party was in possession of the claim at a certain time, describing the property in dispute, and, where it is alleged in a complaint in ejectment, the subsequent ouster by defendant. But when the plaintiff alleges title in fee, proof of prior possession of the property as a mining claim is held sufficient to sustain the averment.2 Nevertheless, it has been held that the mere averment, in broad and general terms, of the prior possession of a tract of land including the claim in question, without alleging the character or extent of the possession was insufficient, at least to recover on the pleadings. The allegation should be that it was held as mineral land.3

1 Coryell vs. Cain, 16 Cal. 567.

2 Sears vs. Taylor, 4 Col. 38; Jackson vs. McMurry, id. 76.

3 Smith vs. Doe, 15 Cal. 100.

$ 20. Qualifications entitling persons to explore, occupy and purchase mineral lands.—The qualifications enumerated in the statute now in force, are somewhat different in wording from the repealed section of the former statute;2 but do not differ materially in the general purpose to confine the privileges of mining on the public domain to citizens and those who desire to become citizens by naturalization. The substituted section first in order of arrangement, provides for purchase, in addition to "exploration and occupation." The next section points out the manner in which citizenship may be proved, and by necessary implication includes in the classification of

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